Legislature(1997 - 1998)

1997-04-16 Senate Journal

Full Journal pdf

1997-04-16                     Senate Journal                      Page 1169
HB 58                                                                        
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 58(FIN)                           
am An Act relating to civil actions; relating to independent counsel           
provided under an insurance policy; relating to attorney fees;                 
amending Rules 16.1, 41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules            
of Civil Procedure; amending Rule 702, Alaska Rules of Evidence;               
and amending Rule 511, Alaska Rules of Appellate Procedure was                 
read the second time.                                                          
                                                                               
Senator Kelly called the Senate.  The call was satisfied.                      
                                                                               
Senator Kelly moved and asked unanimous consent for the adoption               
of the Rules Senate Committee Substitute offered on page 1166.                 
Senator Duncan objected, then withdrew his objection.   There being            
no further objections, SENATE CS FOR CS FOR SPONSOR                            
SUBSTITUTE FOR HOUSE BILL NO. 58(RLS) An Act relating                          
to civil actions; relating to independent counsel provided under an            
insurance policy; relating to attorney fees; amending Rules 16.1, 26,          
41, 49, 58, 68, 72.1, 82, and 95, Alaska Rules of Civil Procedure;             
amending Rules 1 and 4, District Court Rules of Civil Procedure;               
amending Rule 702, Alaska Rules of Evidence; and amending Rule                 
511, Alaska Rules of Appellate Procedure (technical title change)              
was adopted and read the second time.                                          
                                                                               
Senator Donley offered Amendment No. 1 :                                        
                                                                               
Page 15, lines 26 - 31:                                                        
	Delete all material.                                                          
	Insert "this subsection must (1) be posted conspicuously in                   
all admitting areas of the hospital; (2) consist of a sign at least two        
feet high and two feet wide, with print at least two inches high; (3)          
be published at least annually in a newspaper of general circulation           
in the area; and (4) be in substantially the following form:                   
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1170
HB 58                                                                        
                          Notice to Hospital Users and                         
                          Notice of Limited Liability                          
(Name of hospital) may not be responsible for the                             
actions of emergency room physicians in (name of                               
hospital's emergency room). The following                                      
emergency room physicians are independent                                      
contractors and are not employees of the hospital:"                            
                                                                               
Senator Donley moved for the adoption of Amendment No. 1.                      
Objections were heard.                                                         
                                                                               
The question being: Shall Amendment No. 1 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
SCS CS SSHB 58(RLS)                                                            
Second Reading                                                                 
Amendment No. 1                                                                
                                                                               
YEAS:  13   NAYS:  5   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Halford, Hoffman, Lincoln,                
Parnell, Pearce, Phillips, Torgerson, Ward, Wilken                             
                                                                               
Nays:  Green, Kelly, Leman, Miller, Sharp                                      
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 1 was adopted.                                           
                                                                               
Senator Donley offered Amendment No. 2 :                                        
                                                                               
Page 16, line 7:                                                               
	Delete $500,000                                                               
	Insert  $1,000,000                                                            
	Delete $1,500,000                                                             
	Insert  $2,000,000                                                            
                                                                               
Senator Donley moved for the adoption of Amendment No. 2.                      
Objections were heard.                                                         
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1171
HB 58                                                                        
The question being: Shall Amendment No. 2 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 2                                                                
                                                                               
YEAS:  6   NAYS:  12   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln                          
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Parnell, Pearce,                  
Phillips, Sharp, Torgerson, Ward, Wilken                                       
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 2 failed.                                                
                                                                               
Senator Adams offered Amendment No. 3 :                                         
                                                                               
Page 10, line 17, after the word judgment.                                   
	Insert:  a. Prior to commencement of an Action:  Upon                       
receipt of a written offer of final settlement, prior to filing a              
complaint, in the form of an Offer of Judgment, pursuant to Alaska             
Civil Rule 68, an insurance company shall make payment of all                  
monetary amounts, if any, due the offeror within 90 days of receipt            
of the written offer.  If the judgment entered on the claim to which           
payment was made under this section is at least 10% greater than the           
insurance company payment, the insurance company shall pay all                 
actual costs and the reasonable actual attorneys fees incurred by the          
offeror from the date the offer was made through judgment or the               
termination of action.  This section is in addition to any other               
remedy held by an insured or offeror specified in statute or common            
law.                                                                           
                                                                               
b. After Commencement of an Action:                                          
                                                                               
Senator Adams moved for the adoption of Amendment No. 3.                       
Senator Leman objected.                                                        
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1172
HB 58                                                                        
The question being: Shall Amendment No. 3 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 3                                                                
                                                                               
YEAS:  6   NAYS:  12   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln                          
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Parnell, Pearce,                  
Phillips, Sharp, Torgerson, Ward, Wilken                                       
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 3 failed.                                                
                                                                               
Senators Adams, Ellis, Duncan, Lincoln, Hoffman offered                        
Amendment No. 4 :                                                               
                                                                               
Sec.___AS__.__.__ is amended to add a new section to read:                     
                                                                               
Sec.___.  Insurance rates to be rolled back. (a) With the exception          
of wet marine insurance, all policies issued or renewed in Alaska              
after January 1, 1998 shall reflect a 5% reduction in premiums                 
charged per unit of coverage.                                                  
                                                                               
(b) No rate or premium increase will be allowed for a policy sold              
in the State of Alaska after January 1, 1998 without application to            
the director, division of insurance, Department of Commerce and                
Economic Development.                                                          
                                                                               
(c) Before any rate increase may be approved the director shall                
conduct a hearing, the date, time and place of which shall be noticed          
in the Alaska Bar Rag and in at least one other newspaper of                   
general circulation within the state no less than 60 days before               
commencement of the hearing.  In addition the notice shall                     
summarize the particulars of the requested rate increase.  At the              
directors discretion, costs associated with this procedure may be              
charged to the carrier requesting the rate or premium increase.                

1997-04-16                     Senate Journal                      Page 1173
HB 58                                                                        
(d) Upon application of any interested person or entity to intervene           
in these proceedings, the director shall allow such intervention.  The         
director may order discovery and shall allow any interested person             
or entity, once having intervened in the proceeding, discovery as to           
issues relevant to the proceeding and consistent with the definition           
and scope of discover as set forth in the Alaska Rules of Civil                
Procedure.  No hearing shall take place until the requesting carrier           
has fully complied with discovery requests submitted to it by the              
director and any other party or parties to the proceeding.                     
                                                                               
(e) The carrier shall have the burden of proving that its requested            
rate increase is more likely than not in the public interest under all         
the circumstances.  In the event that the rate of return to be enjoyed         
by the carrier in the face of the requested rate increase equals or            
exceeds the prejudgment interest rate on personal injury claims as             
then defined by statute, the rate increase shall be rebuttably                 
presumed to be against the public interest.                                    
                                                                               
(f) Interveners shall be deemed public interest litigants.  To the             
extent they successfully oppose requested rate increases they shall be         
awarded full reasonable costs and attorney fees to be paid by the              
requesting carrier.  In the event that interveners are unsuccessful in         
opposing rate increases, they shall be awarded full reasonable costs           
and attorneys fees where the director determines that their efforts in         
opposing the rate increase were taken in good faith, were not                  
frivolous, or substantially advanced the public interest.                      
                                                                               
Senator Adams moved for the adoption of Amendment No. 4.                       
Senator Green objected.                                                        
                                                                               
The question being: Shall Amendment No. 4 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1174
HB 58                                                                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 4                                                                
                                                                               
YEAS:  5   NAYS:  13   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Duncan, Ellis, Hoffman, Lincoln                                  
                                                                               
Nays:  Donley, Green, Halford, Kelly, Leman, Miller, Parnell,                  
Pearce, Phillips, Sharp, Torgerson, Ward, Wilken                               
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 4 failed.                                                
                                                                               
Senators Duncan, Lincoln offered Amendment No. 5 :                              
                                                                               
Page 7, lines 18 - 27:                                                         
	Delete all material and insert:                                               
	"(g)  If the fact finder determines that the conduct proven                   
under (b) of this section was motivated by financial gain and the              
average annual net income earned by the defendant for the five years           
before the year in which the trial began exceeded $1,000,000 a year,           
it may award an amount of punitive damages not to exceed the                   
greatest of                                                                    
		(1)  the amount calculated under the limitation in (f)                       
of this section;                                                               
		(2)  the average net annual income earned by the                             
defendant for the five years before the year in which the trial began;         
or                                                                             
		(3)  two times the amount of financial gain that the                         
defendant received or expected to receive as a result of the                   
defendant's misconduct."                                                       
                                                                               
Senator Duncan moved for the adoption of Amendment No. 5.                      
Objections were heard.                                                         
                                                                               
Senator Leman moved and asked unanimous consent that he be                     
allowed to abstain from voting due to a conflict of interest.                  
Objections were heard and Senator Leman was required to vote.                  

1997-04-16                     Senate Journal                      Page 1175
HB 58                                                                        
The question being: Shall Amendment No. 5 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 5                                                                
                                                                               
YEAS:  6   NAYS:  12   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln                          
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Parnell, Pearce,                  
Phillips, Sharp, Torgerson, Ward, Wilken                                       
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 5 failed.                                                
                                                                               
Senator Lincoln offered Amendment No. 6 :                                       
                                                                               
Page 3, line 2:                                                                
	Delete federal                                                                
                                                                               
Senator Lincoln moved for the adoption of Amendment No. 6.                     
Senator Leman objected.                                                        
                                                                               
The question being: Shall Amendment No. 6 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 6                                                                
                                                                               
YEAS:  6   NAYS:  12   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln                          
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Parnell, Pearce,                  
Phillips, Sharp, Torgerson, Ward, Wilken                                       
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 6 failed.                                                

1997-04-16                     Senate Journal                      Page 1176
HB 58                                                                        
Senator Ellis offered Amendment No. 7 :                                         
                                                                               
Page 3, line 18:                                                               
	Delete 10                                                                     
	Insert  11                                                                    
                                                                               
Page 3, line 20:                                                               
	Delete 10                                                                     
	Insert  11                                                                    
                                                                               
Page 3, line 24, after the word from:                                          
	Insert  gross negligence                                                      
	Delete an                                                                     
	Insert  or                                                                    
                                                                               
Page 4, line 2:                                                                
	Delete prolonged                                                              
	Delete waste and                                                              
	Insert  substance                                                             
                                                                               
Page 4, line 3, after the word intentional:                                    
	Insert  or reckless                                                           
                                                                               
Page 4, after line 8:                                                          
	Insert  (f) breach of trust or fiduciary duty                                 
                                                                               
Page 4, line 14:                                                               
	Delete give notice of a potential                                             
	Insert  constitute accrual of a                                               
                                                                               
Senator Ellis moved for the adoption of Amendment No. 7.  Senator              
Leman objected.                                                                
                                                                               
Senator Ellis moved and asked unanimous consent that the question              
be divided.  President Miller ruled the question divisible.  Without           
objection, Amendment No. 7 was divided as follows:                             
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1177
HB 58                                                                        
Part A:                                                                        
Page 3, line 18:                                                               
	Delete 10                                                                     
	Insert  11                                                                    
                                                                               
Page 3, line 20:                                                               
	Delete 10                                                                     
	Insert  11                                                                    
                                                                               
Page 3, line 24, after the word from:                                          
	Insert  gross negligence                                                      
	Delete an                                                                     
	Insert  or                                                                    
                                                                               
Part B:                                                                        
Page 4, line 2:                                                                
	Delete prolonged                                                              
	Delete waste and                                                              
	Insert  substance                                                             
                                                                               
Page 4, line 3, after the word intentional:                                    
	Insert  or reckless                                                           
                                                                               
Part C:                                                                        
Page 4, after line 8:                                                          
	Insert  (f) breach of trust or fiduciary duty                                 
                                                                               
Part D:                                                                        
Page 4, line 14:                                                               
	Delete give notice of a potential                                             
	Insert  constitute accrual of a                                               
                                                                               
Senator Ellis moved for the adoption of Part A of Amendment No.                
7.  Objections were heard.                                                     
                                                                               
Senator Leman moved and asked unanimous consent that he be                     
allowed to abstain from voting due to a conflict of interest.                  
Objections were heard and Senator Leman was required to vote.                  
                                                                               

1997-04-16                     Senate Journal                      Page 1178
HB 58                                                                        
The question being: Shall Part A of Amendment No. 7 be                         
adopted?  The roll was taken with the following result:                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 7 - Part A                                                       
                                                                               
YEAS:  5   NAYS:  13   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Duncan, Ellis, Hoffman, Lincoln                                  
                                                                               
Nays:  Donley, Green, Halford, Kelly, Leman, Miller, Parnell,                  
Pearce, Phillips, Sharp, Torgerson, Ward, Wilken                               
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Part A of Amendment No. 7 failed.                                      
                                                                               
Senator Ellis moved for the adoption of Part B of Amendment No.                
7.  Senator Leman objected.                                                    
                                                                               
The question being: Shall Part B of Amendment No. 7 be                         
adopted?  The roll was taken with the following result:                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 7 - Part B                                                       
                                                                               
YEAS:  9   NAYS:  9   EXCUSED:  2   ABSENT:  0                               
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln, Parnell,                
Phillips, Wilken                                                               
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Pearce, Sharp,                    
Torgerson, Ward                                                                
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Part B of Amendment No. 7 failed.                                      
                                                                               
Senator Ellis moved for the adoption of Part C of Amendment No.                
7.  Senator Pearce objected.                                                   
                                                                               

1997-04-16                     Senate Journal                      Page 1179
HB 58                                                                        
The question being: Shall Part C of Amendment No. 7 be                         
adopted?  The roll was taken with the following result:                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 7 - Part C                                                       
                                                                               
YEAS:  8   NAYS:  10   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Halford, Hoffman, Lincoln,                
Ward                                                                           
                                                                               
Nays:  Green, Kelly, Leman, Miller, Parnell, Pearce, Phillips, Sharp,          
Torgerson, Wilken                                                              
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Part C of Amendment No. 7 failed.                                      
                                                                               
Senator Ellis moved for the adoption of Part D of Amendment No.                
7.  Senator Leman objected.  Senator Ellis moved and asked                     
unanimous consent that he be allowed to withdraw his motion.                   
Without objection, it was so ordered.                                          
                                                                               
Senator Duncan offered Amendment No. 8 :                                        
                                                                               
Page 5, lines 24 - 31:                                                         
	Delete all material.                                                          
	Insert "life expectancy in years multiplied by $30,000,                       
whichever is greater, when the damages are awarded for severe                  
permanent impairment or severe disfigurement."                                 
                                                                               
Senator Duncan moved for the adoption of Amendment No. 8.                      
Senator Leman objected.                                                        
                                                                               
The question being: Shall Amendment No. 8 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1180
HB 58                                                                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 8                                                                
                                                                               
YEAS:  6   NAYS:  12   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Donley, Duncan, Ellis, Hoffman, Lincoln                          
                                                                               
Nays:  Green, Halford, Kelly, Leman, Miller, Parnell, Pearce,                  
Phillips, Sharp, Torgerson, Ward, Wilken                                       
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 8 failed.                                                
                                                                               
Senator Ellis offered Amendment No. 9 :                                         
                                                                               
Page 9, lines 13 - 24:                                                         
	Delete all material                                                           
                                                                               
Page 9, line 25:                                                               
	Delete Section 14                                                             
	Insert  Section 13                                                            
                                                                               
Renumber the following bill sections accordingly.                              
                                                                               
Senator Ellis moved for the adoption of Amendment No. 9.  Senator              
Leman objected.                                                                
                                                                               
The question being: Shall Amendment No. 9 be adopted?  The roll                
was taken with the following result:                                           
                                                                               
                                                                               

1997-04-16                     Senate Journal                      Page 1181
HB 58                                                                        
                                                                               
SCS CS SSHB 58(RLS) am S                                                       
Second Reading                                                                 
Amendment No. 9                                                                
                                                                               
YEAS:  5   NAYS:  13   EXCUSED:  2   ABSENT:  0                              
                                                                               
Yeas:  Adams, Duncan, Ellis, Hoffman, Lincoln                                  
                                                                               
Nays:  Donley, Green, Halford, Kelly, Leman, Miller, Parnell,                  
Pearce, Phillips, Sharp, Torgerson, Ward, Wilken                               
                                                                               
Excused:  Mackie, Taylor                                                       
                                                                               
and so, Amendment No. 9 failed.                                                
                                                                               
President Miller stated that SENATE CS FOR CS FOR SPONSOR                      
SUBSTITUTE FOR HOUSE BILL NO. 58(RLS) am S will be read                        
a third time on April 17.